New 4th Amendment/qualified immunity case
Messerschmidt v. Millender, handed down today, by the U.S Supreme Court.
Girlfriend is moving out of place where she lived with boyfriend, a Crips member with a very long rap sheet. He attacks her, tries to throw her from a second floor landing. She speeds away while he fires five shots at her from a sawed-off shotgun. She reports situation to police, adding that boyfriend might be staying at the house of his stepmother.
Police get a warrant to search stepmother's place for all firearms and gang-related material, and execute it, seizing a shotgun that belonged to the stepmother. She sues under 42 USC 1983, apparently arguing that (1) the warrant called for searching and seizing all firearms, when only one, of a specific known appearance, had been used in crime and (2) there was no probable cause to search for gang-related things.
Which in turn raised the question of qualified immunity -- the concept that an officer cannot be sued for a constitutional violation unless a reasonable LEO would have known that it was a constitutional violation. The majority rules that a reasonable officer would not have realized that it was a constitutional violation (assuming that it was indeed such), and qualified immunity applies.
Sotomayor dissents, with an interesting note:
"They did so for the asserted reason that the search might lead to evidence related to other gang members and other criminal activity, and that other “[v]alid warrants commonly allow police to search for ‘firearms and ammunition.’ ” See infra, at 8–9. That kind of general warrant is antithetical to the Fourth Amendment."
Breyer concurs -- with an opinion only six sentences long!
Kagan concurs in part and dissents in part. She agrees that the firearms part of the warrant could be covered by qualified immunity, but disagrees as to the part relating to evidence of gang membership, since that is not illegal.
To me, there is one startling passage..;. but then this case did come out of California. Boyfriend had been arrested 31 times, including three times for assault with a deadly weapon, three times for other violent offenses, and nine times for firearm offenses. And he's out on the street....